Choice of law can be a critical issue in such suits, according to Robert D. Chesler, a shareholder with Anderson Kill & Olick PC.
In New York, a plaintiff trying to argue that a broker had to do more than just secure requested, available coverage must show a "special relationship," and courts there haven't sorted out what that means, he said. Plaintiffs face an easier standard in New Jersey, where brokers are considered fiduciaries who owe certain duties to their clients, according to Chesler.
To win a suit in New Jersey, plaintiffs will have to show a breach of duty, Chesler said.
"Normally an insurance broker makes promises as to what he's providing: 'I will give you the best coverage, I will look at the options and tell you what you need,'" he said. "In those situations where a broker misses something obvious like flood coverage, he is opened up to liability."